Legalese is not spoken here

We are delighted to announce that the law firm formerly known as Constangy, Brooks & Smith, LLP, is now Constangy, Brooks, Smith & Prophete, LLP, as internationally-recognized labor and employment attorney Don Prophete and 12 other outstanding labor and attorneys have joined our firm. The moves give our firm more depth, and new offices in Denver and New York City in addition to our already-existing 24 offices nationwide.

Religious accommodation, the Oscars, non-competes, social media, Brian Williams versus Bill O’Reilly, workplace violence, and inspirational employees — we have it all today! Here are some links about recent news and court cases involving the workplace, followed by some points for discussion if you’d like to comment.

As the world turns . . .

Supreme Court justices seem to side with hijab-wearer against Abercrombie. Oral argument was held Wednesday in EEOC v. Abercrombie & Fitch, a case I’ve been following for some time. According to the EEOC, Samantha Elauf – a woman who wore a Muslim hijab (head scarf) to her job interview – was rejected for employment at an Abercrombie store in Tulsa, Oklahoma, because the hijab didn’t fit in with the retail chain’s “look” policy. (Abercrombie has changed its policy since Ms. Elauf was declined employment.) The EEOC claims that Abercrombie discriminated against Ms. Elauf because of her religion and failed to reasonably accommodate her religious beliefs. The EEOC won summary judgment, but Abercrombie appealed to the U.S. Court of Appeals for the Tenth Circuit, which reversed and granted summary judgment to Abercrombie instead. According to the Tenth Circuit, Ms. Elauf was required to disclose to her interviewer that she was wearing the hijab for religious reasons — otherwise, Abercrombie couldn’t have known that its duty to avoid discrimination or make reasonable accommodations was triggered.

I disagreed with the Tenth Circuit decision in this post from 2013. The case is now at the U.S. Supreme Court.

The changes reflect (and expand upon) last year’s Supreme Court decision in United States v. Windsor. That decision overruled Section 3 of the Defense of Marriage Act, which defined “marriage” for purposes of federal law as being between one man and one woman.

Consistent with Section 3 of the DOMA, the DOL has traditionally defined “marriage” for FMLA purposes in this same way (that is, as male-female). With respect to opposite-sex spouses, the DOL determined whether a couple was validly married based on their state of residence rather than “place of celebration” (where the marriage was entered).

CHANGES IN THE NEW RULE

The changes to the FMLA regulations, which will take effect March 27, will essentially provide for uniform treatment of same-sex spouses by looking at the place of celebration instead of state of residence. In other words, if a same-sex couple was validly married, then they are “spouses” for FMLA purposes regardless of where they may live in the future.

(“Place of celebration” will apply to opposite-sex spouses, too, but that change won’t make a difference because other states have always recognized opposite-sex marriages that were validly entered in other states.)

The DOL argues that its changes will provide for more consistency, which will make things easier for same-sex couples and for employers who have multi-state operations. The DOL also noted that the U.S. Department of Defense already follows a “place of celebration” rule for military spouses.

Same-sex couples who were married outside the United States will be considered “spouses” as long as the marriage (a) was valid where entered, and (b) would be considered valid in at least one U.S. state.

“Spousal” status under the FMLA means that an employee may take leave for the same-sex spouse’s serious health condition, for spousal military “qualifying exigency” leave, or for spousal military caregiver leave. It also means that the employee can take leave for the serious health condition of the child of the same-sex spouse, even if the employee is not acting in loco parentis with respect to the child.

I have for some time questioned the practice of “we will not contest your unemployment claim,” however. Depending on the state and the documents filed and served on the employer, it seems that this can be an implied false statement to a government agency. If eligibility for the benefit requires lack of misconduct by the employee, but misconduct was the grounds for termination, isn’t it a false statement to not dispute the employee’s version of events as being terminated for no fault of her own?

“Too long, loved the judge, didn’t believe either one of them but still think she may have been hurt, liked the firm but thought they should have done more.”

A little Faruqi fix for those of you don’t know what to do with yourselves now that the trial is over — David Lat of Above the Lawinterviewed one of the jurors, who offered some excellent insights into why they did what they did. Definitely worth a read.

The jury found in Ms. Marchuk’s favor on her sexual harassment claim under the New York City Human Rights Law, but found in the defendants’ favor on her harassment claims under Title VII (federal law) and the New York state Human Rights Law. Presumably, Ms. Marchuk will also be able to get attorneys’ fees as the prevailing party under the NYCHRL.

Law360 reports this afternoon that the jury returned a verdict for Alexandra Marchuk and against defendants Faruqi & Faruqi, LLP, and partner Juan Monteverde. The jury awarded her $90,000 in actual damages, and punitive damages will be determined later. She had asked for $2 million.

Ms. Marchuk won on her hostile work environment claim under the New York City Human Rights Law. However, the jury found in favor of the defendants on her hostile environment claims under Title VII (federal) law and the New York state Human Rights Law.

Tune in tomorrow (literally), and I’ll provide some analysis of the whole sordid affair and final thoughts.

The sexual harassment case of Alexandra Marchuk v. Faruqi & Faruqi went to the jury late yesterday afternoon. For previous coverage of the trial, go here, here, here, here, here, and here.

“Ladies and gentlemen, she’s a WOLF!”

In closing arguments, the attorney for the defendants called Ms. Marchuk a “wolf” and said she had made up her allegations to get money. Among other things, he noted that her gynecologist, who she saw only a few days after the 2011 post-holiday party “encounter,” testified that Ms. Marchuk had said that the encounter was consensual and that she was ok about it.

Whoa. I had not seen that in prior news coverage of the trial. Very significant testimony for the defendants, in my opinion.

“Now she has [Post-Traumatic Stress Disorder],” the lawyer said. “Not like she’s a Vietnam vet coming back from the war.”

Ms. Marchuk’s attorney responded that Ms. Marchuk had lied to her gynecologist because she didn’t want to be pressured to go to the police. (Hmmmm.) The attorney accused the defense of “blaming the victim.”

Earlier this week, Judge Alvin Hellerstein denied Ms. Marchuk’s request that he reconsider his decision dismissing her retaliation and defamation claims, and dismissing the law firm’s co-founders, Nadeem and Lubna Faruqi, as individual defendants. Judge Hellerstein also denied a defense motion to dismiss Ms. Marchuk’s claim for punitive damages.

Ms. Marchuk is seeking approximately $2 million in back pay, front pay, and compensatory and punitive damages.

Thanks again to Law360 (paid subscription required), and to reporters Ben James and Max Stendahl, for their excellent daily coverage of this trial, without which these blog posts would not be possible.

We’ll be back with the verdict! I don’t know about you, but I am on the edge of my seat!

As expected, Law360 reports this morning that Plaintiff Alexandra Marchuk has asked Judge Alvin Hellerstein to reconsider his ruling that Nadeem Faruqi and Lubna Faruqi, co-founders of the New York law firm Faruqi & Faruqi, be dismissed from her lawsuit as individual defendants. She also requested reconsideration of the court’s decision granting judgment to the defendants on her retaliation and defamation claims. According to the report, the case is expected to go to the jury on Monday.

About Us

Robin Shea has more than 20 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). Continue Reading

About our Firm

Since 1946, Constangy attorneys have counseled employers, from Fortune 500 corporations to smaller companies across the nation. We have more than 125 attorneys in more than 20 offices throughout the United States. Our attorneys understand what it’s like to walk in clients’ shoes—whether in the board room, the courtroom, or the factory. Just like in our blog, “legalese” is not spoken at our firm; we communicate with our clients in plain English. Clients view us as strategic partners, not just legal technicians.